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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> London Borough of Islington v University College London Hospital NHS Trust  EWCA Civ 596 (16 June 2005)
Cite as:  EWCA Civ 596
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR JUSTICE DOUGLAS BROWN
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE CLARKE
MR JUSTICE OUSELEY
| The London Borough of Islington
|- and -
|University College London Hospital NHS Trust
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
for the Appellant
Mr S Miller QC and Miss C Neenan (instructed by Hempsons) for the Respondent
Crown Copyright ©
Buxton LJ :
The nature of the case
"1. This case concerns the care costs for a lady who it is agreed should be called Mrs J. She was born in April 1923 and in 1995 was diagnosed with rheumatic mitral valve disease and in January 1996 began taking Warfarin, an anticoagulant. The purpose of treating her with Warfarin was to reduce the risk of a cardiac embolus. She was due to be admitted to Middlesex Hospital on 13th February 1998 for mitral valve replacement and she was told at the hospital to stop taking her Warfarin a week before the operation in readiness for that. The operation was cancelled and she was told of that on the 11th February 1998 and told by the cardiac surgeon's secretary not to recommence her Warfarin. Shortly after that she developed pains in her legs and enquired of the hospital by telephone as to whether that could be connected to the lack of Warfarin. She was told that it could not be and she should not start taking it again.
2. On 22nd February 1998 Mrs J suffered a large right hemisphere cerebral infarct (a stroke) following a cardiac embolus. The result of the stroke was that Mrs J became dependant on others for her care.Mrs J's Litigation
3. On 7th February 2001 Mrs J commenced proceedings against the Defendant Hospital Trust and for the purposes of those proceedings she was a patient. In its defence dated 5th July 2001 the Defendant Hospital Trust admitted in these proceedings that her stroke was caused by its negligence. The evidence for the Defendant in the instant proceedings is that negligence was that of a temporary secretary working for the cardiac surgeon.
4. A structured settlement of Mrs J's claim was entered into on 28th September 2003. Up to then she had been cared for by the Claimant Local Authority in residential care under the provisions of Section 21 of the National Assistance Act 1948. In summary the structured settlement enabled Mrs J's daughter to buy a house in which to care for her together with the sum of £40,000 a year payable so long as she remained in the care of her daughter. All the sums payable under the settlement are paid into the Court of Protection.The Present Proceedings
5. The total net cost of caring for Mrs J to the Local Authority was £81,210.94. I will refer to the statutory provisions shortly but in summary under the 1948 Act the Local Authority were under a duty to provide residential care for her if she needed it and it was not otherwise available. The Local Authority were under a statutory duty to charge Mrs J for the care provided to her or at least to assess her ability to pay for that care but in so doing they were bound to disregard the compensation under the settlement for the purposes of calculating her liability to pay. In consequence Mrs J could not recover the care costs from the Defendant because she was not herself liable to pay them. She therefore suffered no loss resulting from these care costs and indeed made no claim in her proceedings for those costs. The Local Authority's case is therefore based on the assertion that the Defendant Hospital Trust has escaped liability to pay for Mrs J's care costs because her means were such that she had to rely on Local Authority care. If her care provision had been otherwise available to her from her family or as a result of her own financial ability to pay for her residential care she would have been able to recover the care costs from the Defendant and the Local Authority would not have borne the care costs. In these proceedings the Local Authority seek to recover the care costs from the Defendant basing its claim in the tort of negligence. The Defendant denies liability primarily on the ground that there was no duty of care. Accordingly, by agreement, Master Yoxall on 4th February 2004 ordered the trial of a preliminary issue, namely:
"Whether a duty of care was owed to the Claimants by the Defendant not negligently to injure Mrs J so as to cause damage in the form of care costs"The Law in Relation to Care Provision
6. Section 21 (1) of the National Assistance Act 1948 provides:
"Subject to and in accordance with the provisions of this part of this Act, a Local Authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing (a) residential accommodation for persons aged eighteen or over who by reason of age, illness, disability or any other which is not otherwise available to them…"
7. This power was converted into a mandatory duty by directions given by the Department of Health in 1993 [LAC (93) 10]. By paragraph 2(1)(b) of this directive the Secretary of State directed Local Authorities to make arrangements under Section 21(1)(a) of the Act in relation to "persons who are ordinarily resident in their area and other persons who are in urgent need thereof". It is not necessary to refer further in detail to the statute or to the regulations made under it. (The National Assistance (Assessment of Resources) Regulations 1992 and the Income Support (General) Regulations 1987). For the purposes of this litigation the position can be summarised in this way.i) A Local Authority must provide residential accommodation to a person they consider to be in need thereof who is ordinarily resident in their area and which is not otherwise available to him. See National Assistance Act 1948 Section 21 (1)(a): L.A.C.(93) 10 paragraph 2(1)(b).ii) The accommodation provided in accordance with that duty should normally be in premises managed by the Local Authority but may be in premises of voluntary organisations or other persons: National Assistance Act 1948 Section 21(4) and Section 26. It is the case that Mrs J was in fact cared for in premises other than those managed by the Local Authority.iii) In deciding whether a person is "in need" for the purposes of the 1948 Act and if so in determining what type of accommodation could meet such need, the Local Authority may have regard to it's resources: see R v Gloucester County Council ex parte Barry  AC 584. Further the Local Authority may also treat resources as relevant to deciding between types of accommodation provided that each meets the individual's need: see e.g.R (Mokoko Batantu) v Islington LBC  C.C.L.R. 445.iv) Where accommodation is provided to a person in accordance with the 1948 Act the Local Authority providing it must recover from him payment for that accommodation either at the standard rate or at such other rate as the Local Authority shall determine: National Assistance Act 1948 Section 22(1) and 22(3).v) In assessing a person's ability to pay, the Local Authority must disregard in calculation of both his capital and income the funds of any trust which are derived in payment made in consequence of any personal injury to that person, the value of the trust fund and the value of the right to receive any payment under that trust including sums administered by the Court of Protection: see National Assistance Act 1948 Section 22(5); National Assistance (Assessment of Resources) Regulations 1992, Regulations 21(2) and Schedule 4 paragraphs 10 and 19: The Income Support (General) Regulations 1987, Schedule 10 paragraphs 12 and 44(a)."
The issue shortly stated
The tort of negligence
"It is convenient here to consider the questions posed by Mr Underwood.
i) If Mrs J stopped taking her Warfarin as a result of advice was there a reasonable possibility that she would suffer a stroke? The answer to that must be yes. Warfarin was intended to reduce the risk of an embolus which if it occurs is likely to lead to a stroke.
ii) If she suffered a stroke is it foreseeable that she would require care? That is a possibility but strokes are varied and idiosyncratic in their effect. The stroke could result in a complete recovery with no care. There could be partial recovery with some care at home or there could be disability as in Mrs J's case which called for full time care.
iii) If she required care would that care have to be provided by the Local Authority? That was a possibility but care at home and care in a private nursing home were equal possibilities.
iv) If the Local Authority provided care would she be able to pay for it? This seems to me to be an impossible question for the Hospital Trust to answer at the time when the wrong advice was given. As Mr Underwood accepted their knowledge was restricted to her age and her address and postcode. There was insufficient material for them to infer even on a provisional basis that she might be without means.
49. To these questions I pose Mr Miller's question: Would the Hospital Trust have any knowledge or the means of knowledge of how Mrs J or those advising her might arrange for her damages to be received and in particular whether they would arrange for her damages to be paid into the Court of Protection or into a trust fund? It was only in those circumstances that any damage would in fact be caused to the Hospital Trust if there was a duty of care. The answer plainly is that the Hospital Trust could have no such knowledge or means of knowledge. In my view the answers to these questions demonstrate that the likelihood of foreseeable harm depends on speculation to such an extent that it is not possible to conclude that there was here a reasonably foreseeable risk of harm. I am led to the conclusion from all the material before me that at the time of the negligent advice it was not reasonably foreseeable that the Local Authority might suffer damage as a result.
50. In his analysis of the Local Authority's case at paragraph 52 of his skeleton argument Mr Underwood said:
"The foreseeability test is plainly passed. A medical practitioner advising Mrs J about the continuation or resumption of her anticoagulant treatment plainly ought to have foreseen that negligent advice would cause a stroke which would (my emphasis) require residential care of the patient at the expense of one of the statutory providers of such care. Local Authorities are the statutory providers as any medical practitioner would know".
Although this bold statement was watered down slightly during oral submissions it illustrates the unreality of the Local Authority's case on foreseeability."
"This general concept of reasonable foresight as the criterion of negligence or breach of duty (strict or otherwise) may be criticized as too vague, but negligence is a fluid principle, which has to be applied to the most diverse conditions and problems of human life. It is a concrete, not an abstract, idea. It has to be fitted to the facts of the particular case."
This fluidity or flexibility of the concept of foreseeability is illustrated for instance in the speeches in Jolley v Sutton LBC  1 WLR 1083 of Lord Steyn at p 1090C, where he warned that the precise manner and extent of the injury did not have to be foreseeable; and of Lord Hoffmann at pp 1091H-1092D, where he pointed out that, in determining the existence of a duty to prevent a given injury, the likelihood of the injury had to be balanced against the reasonableness or burden of the steps necessary to eliminate the risk.
"Convenient label or not, the proximity test invites the Court to consider the relationship between the parties. Here as Mr Miller said, there is no relationship between the Hospital Trust and the Local Authority at all at the time of the advice. They were not aware of each other in the context of Mrs J and they were not brought into a proximity relationship by reason of the fact that the Local Authority were the statutory care providers for Mrs J if she made an application to them. In these circumstances the Local Authority fails the proximity test."
"the two headings (proximity and justice) are no more than two labels under which the court examines the pros and cons of imposing liability in negligence in a particular type of case"
"Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise".
"It is preferable, in my view, that the law should develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by indefinable 'considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed'".
Fair Just and Reasonable
"The second stage of Lord Wilberforce's test in [Anns] is one which will rarely have to be applied. It can arise only in a limited category of cases where, notwithstanding that a case of negligence is made out on the proximity basis, public policy requires that there should no liability".
"In view of my conclusion on foreseeability and proximity it is not strictly necessary to proceed to consider the fair just and reasonable test. However because I was addressed on this by both Counsel I briefly now give my view.
Mr Miller was right here when he submitted that there was no lacuna in the law which needed to be filled by the Court.
It does not appear to me that there is any unjust situation which calls for remedy by the Court. Mr Miller is right when he says that the inability of the Local Authority to recover care costs in cases such as this is the result of a statutory scheme which has been thoroughly reviewed in the decisions of Courts.
Parliament must be taken to be aware of the situation created by the combination of the provisions of Section 21 of the National Assistance Act 1948, the 1993 Directive, and decisions of the Court, and has chosen in this case not to intervene to give assistance to that authority.
It is a necessary consequence of the interface between Government and Local Authority in the field of payment for care and it is an abuse of language to describe it as a gross injustice calling for remedy.
If there were an injustice in this area of the law it is not for the Court to intervene but for Parliament. Parliament has imposed liability on tortfeasors under the Road Traffic Acts and recently far more broadly under the Health and Social Care (Community Health and Standards) Act 2003. If intervention is needed Parliament can decide to be involved.
There is in my view no identifiable public policy which requires the Court to extend the law of negligence by providing a novel duty of care to Local Authorities in the circumstances of this case."
Lord Justice Clarke:
Mr Justice Ouseley :
"The failure of the law in general to compensate for injuries sustained by persons unconnected with the event precipitated by a defendant's negligence must necessarily import the lack of any legal duty owed by the defendant to such persons. That cannot, I think, be attributable to some arbitrary but unenunciated rule of 'policy' which draws a line as the outer boundary of the area of duty. Nor can it rationally be made to rest upon such injury being without the area of reasonable foreseeability. It must, as it seems to me, be attributable simply to the fact that such persons are not, in contemplation of law, in a relationship of sufficient proximity to or directness with the tortfeasor as to give rise to a duty of care, though no doubt 'policy', if that is the right word, or perhaps more properly, the impracticability or unreasonableness of entertaining claims to the ultimate limits of the consequences of human activity, necessarily plays a part in the court's perception of what is sufficiently proximate."
ORDER: Appeal dismissed; appellant to pay the respondent's costs of the appeal to be agreed; any item of disagreement will be submitted in writing to Buxton LJ for summary assessment.